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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Willis Broadcasting Corporation ) EB-05-NF-016
Licensee of Station WURB(FM) ) NAL/Acct. No.: 200632640001
Windsor, North Carolina ) FRN: 0006151708
Facility ID # 173 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 18, 2005
By the Resident Agent, Norfolk Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Willis Broadcasting Corporation
(``Willis''), licensee of station WURB(FM) in Windsor, North
Carolina, apparently willfully violated Sections 73.1560(b) and
73.3526(a) of the Commission's Rules (``Rules'')1 by operating
overpower and failing to make its complete public inspection
file available for inspection during regular business hours.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended (``Act''),2 that Willis is apparently
liable for forfeiture in the amount of six thousand dollars
($6,000).
II. BACKGROUND
2. On March 15, 2005, a resident agent from the
Commission's Norfolk Office of the Enforcement Bureau
(``Norfolk Office'') inspected station WURB's main studio in
Edenton, and WURB's transmission facilities in Windsor, North
Carolina. The agent observed, using the indirect method
specified in Section 73.267 of the Rules,3 that the WURB
transmitter was operating at more than 140% power of the
station's authorized power. During the inspection, the
station's chief operator and contract engineer admitted that
the station had not established monitoring procedures and
schedules to determine compliance with operating power and
modulation level requirements. The chief operator also
admitted that she did not review or sign the station's weekly
logs to ensure station compliance.
3. On March 15, 2005, the resident agent also requested to
inspect station WURB's public inspection file. Station
personnel were unable to produce the station's radios issues
program lists and a current station authorization.
4. On July 14, 2005, the Norfolk Office issued a Notice of
Violation to Willis for, among other things, violation of
Sections 73.1560(b), and 73.3526(c) of the Rules.4 On August
2, 2005, the Norfolk Office received Willis' response to the
NOV, which included a declaration by the station's contract
engineer.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.5
6. Section 73.1560(b) of the Rules states that the
transmitter output power of an FM station, which is authorized
for output power more than 10 watts, must be maintained as near
as practicable to the authorized transmitter output power and
may not be less than 90% nor more than 105% of the authorized
power.6 The Rules also impose several monitoring requirements
on licensees and station chief operators to ensure compliance
with the Commission's technical rules.7 On March 15, 2005,
station WURB operated at 140% of its authorized power. The
station's chief operator and contract engineer admitted that
the station had not established monitoring procedures and
schedules to determine compliance with operating power and
modulation level requirements. The chief operator also
admitted that she did not review or sign the station's weekly
logs to ensure station compliance.8 In its response to the
NOV, the station's contract engineer stated that he regularly
monitored the station's operating power and never knew it to
operate out of tolerance. He surmised that the transmitter
operated overpower because the transmitter was turned on and
off several times during the inspection. However, on March 15,
2005, when the resident agent observed the station's
transmitter operating overpower, the transmitter had been
powered on non-stop for over 30 minutes.
7. Section 73.3526(a) of the Rules requires commercial
broadcast stations to maintain for public inspection, a file
containing materials listed in that section.9 The public
inspection file is to be maintained at the main studio of the
station10 and be available for public inspection during regular
business hours.11 On March 15, 2005, employees of station WURB
were unable to make available the station's issues programs
lists and current station authorization to the resident agent
during regular business hours. In response to the NOV, the
contract engineer stated that the missing items were contained
in the public file of a collocated licensee and that station
WURB now maintains its own complete public inspection file.
Whether or not these items were located in another file,
station employees were unable to make available the station's
complete public inspection file upon request during regular
business hours.
8. Based on the evidence before us, we find that Willis
apparently willfully violated Sections 73.1560(b) and
73.3526(a) of the Rules by operating more than 140% overpower
and failing to make available for inspection a complete public
inspection file.
9. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, (``Forfeiture Policy
Statement''), and Section 1.80 of the Rules, the base
forfeiture amount for exceeding power limits is $4,000, and the
base forfeiture amount for violation of the public file rule is
$10,000.12 However, because Willis' public file was mostly
complete and missing only two items, we conclude a reduction in
the base forfeiture amount for the public file violation to
$2,000 is appropriate.13 In assessing the monetary forfeiture
amount, we must also take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the violations,
and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such
matters as justice may require.14 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that Willis is apparently liable
for a $6,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, Willis Broadcasting Corporation is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of six
thousand dollars ($6,000) for violations of Sections 73.1560(b)
and 73.3526(a) of the Rules.15
11. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, Willis Broadcasting Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Norfolk Office, 1457 Mount Pleasant Road, Suite 113;
Chesapeake VA 23322 and must include the NAL/Acct. No.
referenced in the caption.
14. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability to
pay unless the petitioner submits: (1) federal tax returns for
the most recent three-year period; (2) financial statements
prepared according to generally accepted accounting practices
("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to
the financial documentation submitted.
15. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.8
16. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Willis
Broadcasting Corporation at its address of record and to its
counsel, Lauren A. Colby, P.O. Box 113, Frederick, MD, 21705-
0113.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Lauren A. Colby
P.O. Box 113
Frederick, MD, 21705-0113
_________________________
147 C.F.R. §§ 73.1560(b), 73.3526(a).
247 U.S.C. § 503(b).
347 C.F.R. § 73.267(c).
4Notice of Violation, NOV No. V20053264006 (Enf. Bur. Norfolk
Office, July 14, 2005) (``NOV'').
5Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term 'willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
647 C.F.R. § 73.1560(b).
7See, e.g., 47 C.F.R. §§ 73.1350(c) (licensees must establish
monitoring procedures and schedules for the station);
73.1870(c)(3) (chief operator must review station records at
least once each week to determine if required entries are being
made correctly and verify that the station has been operated as
required).
8See 47 C.F.R. § 1.1914.
947 C.F.R. § 73.3526(a).
10See 47 C.F.R. § 73.3526(b).
11See 47 C.F.R. § 73.3526(c)(1).
1212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
13See Twenty-One Sound Communications, Inc., Forfeiture Order, 20
FCC Rcd 12497 (Enf. Bur. 2005).
1447 U.S.C. § 503(b)(2)(D).
1547 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
73.1560(b), 73.3526(a).
8See 47 C.F.R. § 1.1914.